FEDERAL COURT OF AUSTRALIA

SZUUP v Minister for Immigration and Border Protection [2017] FCA 857

ORDERS

THE COURT ORDERS THAT:

1.    The Federal Circuit Court of Australia be joined as the third respondent to the proceedings.

2.    The application is dismissed.

3.    The applicant is to pay the Minister’s costs as agreed or as assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

PERRY J:

1.    INTRODUCTION

1    The applicant is a citizen of Pakistan who arrived in Australia on 7 May 2011. On 30 March 2012 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (the Act) claiming to fear persecution in Pakistan by reason of his ethnicity, religion and political opinion. His application for a protection visa was refused on 12 September 2012 by a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister). That decision was affirmed by the (then) Refugee Review Tribunal (the Tribunal) on 14 March 2014.

2    On 23 July 2014, the applicant commenced proceedings for judicial review of the Tribunal’s decision in the Federal Circuit Court (the Court below). The application in the Court below was not filed until 23 July 2014 and therefore was outside the 35 day time limit for the institution of proceedings under s 477(1) of the Act. As a result, it was necessary for the applicant to seek an extension of time under s 477(2) of the Act, as the Court below held. That application was refused by the Court below on 23 November 2016.

3    The applicant seeks judicial review of the decision by the Federal Circuit Court. In his application, the applicant requests this Court “to consider the precarious circumstances that became the reason for the delay of the lodgement of the appeal application.” That application was supported by an affidavit sworn by the applicant on 13 July 2017 (the applicant’s affidavit).

4    The Minister objected to receipt of the applicant’s affidavit on the basis that it was not before the Court below and was not relevant. Given the limited scope of the Court’s jurisdiction on this application (see below at [9]-[11]), I upheld the Minister’s objection and received the affidavit as submissions only. I note that at the hearing, I explained the limited jurisdiction of this Court on an application for judicial review of a decision of the Federal Circuit Court, being an explanation with which Mr Reilly for the Minister agreed save for one qualification which is not presently relevant.

5    The applicant did not have legal representation in the Court below or in this Court. While the applicant did not file written submissions, he made oral submissions with the assistance of an interpreter. The Minister filed written submissions in advance of the hearing.

2.    BACKGROUND

2.1    The Tribunal’s decision

6    Before the Tribunal, the applicant claimed to fear harm in Pakistan from both the government and the Taliban because of his Pashtun race, his Shia religion and his anti-government political opinion. He claimed to have been threatened by the Taliban in 2008 and subsequently after he participated in a protest in “region B”. The Tribunal identified that it had difficulties in accepting these claims. The Tribunal concluded that the applicant had not been harmed in the past and, taking account also of the country information, was not satisfied that there was a real chance that he would be persecuted by the Taliban in his home area, region B. The applicant claimed to fear that the ISI would kill him if he were returned to Pakistan because he protested and openly accused the ISI, the Taliban and the Pakistan Army of certain unlawful conduct. In rejecting his claims, the Tribunal found that the applicant had done no more than repeat what the country reports suggested is a prevalent view in Pakistan. The Tribunal also considered that it was unlikely that, if the applicant were of concern or interest to the ISI, he would have remained in Pakistan undetected for nearly a year, had his passport issued, and then departed Pakistan via the airport. In addition, the Tribunal took into account that the applicant delayed in applying for a protection visa and did not consider that his behaviour was consistent with someone who came to Australia because he feared persecution, rejecting his explanations for the delay. The Tribunal then found that:

23. …the Tribunal does not accept the applicant has been targeted in the past or that he will be individually targeted in the future because the ISI is now looking for him. The Tribunal does not accept that the applicant has been or is wanted by the government. Neither does the Tribunal accept that he has applied for asylum after having been wanted or that if he returns after having sought asylum, he will again be persecuted. While the Tribunal accepts that the applicant may continue to protest if he returns to Pakistan, he has not said anything of sufficient concern to the ISI or Taliban in the past, and the Tribunal is not satisfied he will do so in the reasonably foreseeable future.

7    The Tribunal concluded that it did not accept that there was a real chance that the applicant would be persecuted for the reasons which he claimed if he returned to his home region (region B) now or in the reasonably foreseeable future. As such the Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention so as to satisfy the criteria in s 36(2)(a) of the Act or to engage Australia’s complementary protection obligations for the purposes of s 36(2)(aa).

2.2    The decision of the Federal Circuit Court

8    The Court below dismissed the application for an extension of time on the grounds that it did not consider that the applicant’s explanation for his delay in instituting the proceedings were satisfactorily explained and that there was insufficient merit in the grounds raised in the application to warrant being considered at trial. The Court below concluded that it was not in the interests of justice to extend time.

3.    CONSIDERATION

3.1    Jurisdiction to entertain the application for judicial review of the decision of the Court below

9    While no appeal lies to this Court from the decision of the Federal Circuit Court by virtue of s 476A(3) and s 477(2) of the Act, the Court has jurisdiction to hear this application under s 39B of the Judiciary Act 1903 (Cth): SZTSU v Federal Circuit Court of Australia [2015] FCA 224, affirmed on appeal in SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129. However, the Court’s jurisdiction is “confined to examining whether the decision of the Federal Circuit Court is affected by an error of the kind in relation to which relief under s 39B of the Judiciary Act would be available, that is, examining whether or not the decision of the Federal Circuit Court is attended by jurisdictional error: see for example SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (at [11]-[12]) referring to Craig v South Australia (1995) 184 CLR 163”: MZZVK v Minister for Immigration and Border Protection [2016] FCA 854 (MZZVK) at [31]. In this regard, the High Court in Craig distinguished between the circumstances in which an inferior court will exceed its jurisdiction as opposed to falling into appellable error, holding at 179-180 that:

… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

10    As such, as McKerragher J held in MZZVK at [32], “…the status of the Federal Circuit Court as a court is significant in determining the jurisdiction of the Federal Circuit Court and, therefore, what sort of error by that court could amount to a ‘jurisdictional error’. The jurisdiction of a court includes the authority to conclusively and finally determine questions of law as well as questions of fact.”

11    It follows that I accept the Minister’s submission that, to succeed on his application, the applicant must demonstrate that the Court below misconceived the nature of its function or the extent of its powers within the principles articulated in Craig in considering whether it was in the interests of justice to grant the extension of time sought.

3.2    The application should be dismissed

12    As the Minister submitted, the application itself does not raise any ground suggesting that the primary judge misconceived the nature of his functions or the extent of his powers: see above at [3].

13    The applicant submitted first that he did not have sufficient time to explain the problem of relocation at the Tribunal hearing and that it was impossible for him to relocate to that area mentioned in the Tribunal’s decision, being region B. However, as the Minister submitted, this is an application for judicial review of the decision of the Federal Circuit Court, as opposed to the Tribunal’s decision. It follows that it is necessary to demonstrate an error of the kind earlier explained in the Court’s decision. As such, pointing to an error in the Tribunal’s decision will not, without more, establish an error in the decision of the Federal Circuit Court. Further and in any event, the Tribunal did not find that the applicant could safely relocate to region B, but rather found that region B was his home area, together with another area.

14    Secondly, the applicant submitted that:

(1)    he had no knowledge of the law; and

(2)    his case was dealt by a legal aid solicitor who did not tell him of the different options and in particular, that he should have lodged an application to the Court immediately after the Tribunal gave its decision.

15    The applicant accepted that he had given evidence of these matters before the Federal Circuit Court but complained that the Court below was not prepared to accept his evidence as to the reasons for the delay.

16    The Court summarised the applicant’s evidence at [7]-[10] of its reasons and rejected that evidence for the following reasons:

11. The evidence the applicant gave concerning the actions of his legal aid solicitor was not contained in his application commencing this proceeding or in his affidavit in support. It is not good enough to come to Court approximately two and a half years after commencing a proceeding and articulate a case not foreshadowed earlier than the day of the hearing. Such conduct makes it impossible for the new version of events to be tested effectively which, in turn, affects the weight to be given to the evidence in question. In the absence of any reasonable possibility that the Minister could test the applicant’s evidence concerning the conduct of his legal aid solicitor, the evidence on that subject must be given reduced weight.

12. Weighing that evidence against the likelihood that a solicitor would take one of two, arguably inconsistent, courses of action without taking instructions, I find I do not accept the applicant’s evidence that he was unaware at the time the s.417 request was made that he also had only 35 days to seek review of the Tribunal’s decision. I conclude that the applicant would have been properly advised and that he made an informed decision to pursue one course of action over another.

13. In the circumstances, I am not persuaded that the applicant has provided a satisfactory explanation for his delay in commencing the proceeding.

17    However, as the Minister submitted, even if the finding by the primary judge was wrong, it would not demonstrate that the Court below had fallen into jurisdictional error. An error of that kind is an error made within jurisdiction: see above at [9]-[11].

18    I note that in rejecting the applicant’s evidence, the primary judge found that the applicant had been properly advised of his options. I also note that the primary judge did not expressly mention in his reasons whether the Minister had put to the applicant in cross-examination that, contrary to his evidence, the legal aid solicitor had advised him of the option of instituting proceedings in the court. As a result I raised with counsel for the Minister and the applicant the question of whether the applicant’s evidence on this issue was in fact tested, there being no transcript of the proceedings below in evidence before me. Counsel for the Minister assured the Court that the propositions had in fact been put in cross-examination although the applicant did not accept that. Ultimately, however, this issue was not raised by the application. Furthermore, the onus lies upon the applicant to demonstrate error in the decision of the Court below, rather than upon the Minister to disprove it. In this regard, the mere fact that the primary judge did not expressly refer to the proposition as having being put in cross-examination to the applicant does not prove that it was not put. The Minister also indicated that if this issue were raised by the applicant for the first time at the hearing, the Minister would be prejudiced in that he may have sought to tender the transcript of the hearing below. In this regard, even in cases where an applicant is unrepresented, both parties are entitled to procedural fairness: Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1 (16 June 1986) at [27] (Samuels JA) and [55]-[57] (Mahoney JA). In those circumstances, I do not consider that the issue arises for determination.

19    Finally, the Court below correctly identified at [5]-[6] of its reasons the questions which it must address in determining whether to grant an extension of time should under s 477(2) of the Act and correctly applied the provision. I consider that no other error of a jurisdictional kind is apparent from the decision of the Court below.

4.    CONCLUSION

20    For these reasons, the applicant has failed to establish any reviewable error in the decision of the Federal Circuit Court and the application must be dismissed. I will hear the parties as to costs.

Associate:

Dated:    27 July 2017